UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________
UNITED STATES OF AMERICA,

FILED
United States Court of Appeals
Tenth Circuit

July 21, 2016

Elisabeth A. Shumaker
Clerk of Court

Plaintiff - Appellee,
No. 16-2005
(D.C. No. 2:10-CR-03160-RB-2)
(D. New Mexico)

v.
MARIO DEVONNE WASHINGTON,
SR.,

Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
_________________________________
Mario Devonne Washington, Sr. appeals the district courts denial of his
request for a sentence reduction pursuant to Sentencing Guidelines Amendment 782,
which lowered by two levels the base offense levels provided in the Drug Quantity
Table set forth in U.S.S.G. 2D1.1(c) for drug trafficking offenses. Exercising
jurisdiction pursuant to 28 U.S.C. 1291, we dismiss this appeal and grant counsels
request to withdraw.
*

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

I.

BACKGROUND

Mr. Washington pled guilty to conspiracy to possess with intent to distribute

marijuana, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(D). The United States
Probation Office prepared a Presentence Investigation Report (PSR) that determined
the applicable Sentencing Guidelines range.
Important for our analysis, the PSR determined that Mr. Washington fell
within the career-offender provision of the Guidelines because he had at least two
prior qualifying felony convictions. U.S.S.G. 4B1.1. This classification resulted in
a higher base offense level and criminal history level than would have applied if
Mr. Washington had committed the same offense but did not meet the definition of a
career criminal. Id.
Specifically, the PSR calculated that the quantity of drugs attributed to
Mr. Washington resulted in a base offense level of sixteen. His offense level was then
adjusted upward two levels because Mr. Washington was an organizer or leader of
the drug conspiracy, and an additional two levels because he had engaged in witness
intimidation, tampered with or destroyed evidence, or otherwise obstructed justice in
connection with the investigation or prosecution of the offense. Thus, had Mr.
Washingtons sentence been calculated under 2D1.1, his adjusted guidelines level
of twenty and his eleven criminal history points would have placed him in criminalhistory category V, resulting in a Guidelines range of 63 to 78 months. U.S.S.G.
ch. 5, pt. A.

But because Mr. Washington qualified as a career criminal, the PSR set his
offense level to twenty-four and his criminal-history category to VI pursuant to
4B1.1. The PSR then applied a two-level reduction based on Mr. Washingtons
acceptance of responsibility, for a total of offense level of twenty-two. Thus, due to
Mr. Washingtons status as a career criminal, the PSR calculated the applicable
Guidelines range to be 84 to 105 months.
The district court adopted the PSR without change and sentenced Mr.
Washington based on the offense level of twenty-two and criminal-history category
of VI calculated under 4B1.1. The district court sentenced Mr. Washington to 105
months imprisonment, the high end of the 84- to 105-month Guidelines range.
Mr. Washington did not appeal his sentence.
On March 16, 2015, Mr. Washington filed a pro se Motion for Reduction of
Sentence Under to 18 U.S.C. 3582(c)(2), based on U.S.S.G. Amendment 782. The
district court denied the motion and dismissed for lack of jurisdiction. The district
court also denied as moot Mr. Washingtons Motion for Reconsideration of that
order.
Mr. Washington filed a timely appeal of the district courts denial of his
request for a sentence reduction, and this court granted his motion for the
appointment of counsel. On April 29, 2016, Mr. Washingtons counsel filed a brief in
accordance with Anders v. California, which permits defense counsel to request
permission to withdraw where counsel concludes the appeal is wholly frivolous,
after a conscientious examination of it. 386 U.S. 738, 744 (1967). Consistent with
3

Anders, counsel submitted a copy of the brief to Mr. Washington and advised him of
his right to raise any points that he chooses. Id.
Mr. Washington took advantage of that opportunity and filed a response to
counsels Anders brief. As he did in the district court, Mr. Washington challenges the
accuracy of the PSR and the calculation of his original sentence, including his
classification as a career criminal. But Mr. Washington may not collaterally attack
his original sentence under 3582(c)(2). See United States v. Gay, 771 F.3d 681, 686
(10th Cir. 2014).
After our independent examination of the record, we conclude the appeal is,
indeed, wholly frivolous. We therefore grant counsels motion to withdraw and
dismiss the appeal.
II.

DISCUSSION

This court reviews a decision of the district court denying a request for a
sentence reduction for an abuse of discretion. United States v. Osborn, 679 F.3d
1193, 1195 (10th Cir. 2012). Once a term of imprisonment is imposed, a court may
not modify it except in narrow circumstances, including where a defendant has been
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission. 18 U.S.C. 3582(c)(2).
To be eligible for a sentence reduction under 3582(c)(2), the applicable Guidelines
range must have been lowered by an amendment to the Guidelines listed in
1B1.10(d) of the Guidelines Manual. U.S.S.G. 1B1.10 cmt. n.1(A). But a
reduction in the defendants term of imprisonment is not authorized under 18 U.S.C.
4

 3582(c)(2) if the relevant amendment listed in subsection (d) does not have the
effect of lowering the defendants applicable guideline range. U.S.S.G.
1B1.10(a)(2)(B).
In support of his request for a sentence reduction, Mr. Washington relies on
Amendment 782, which is listed in subsection (d) of section 1B1.10 of the
Guidelines. Amendment 782 lowered by two levels the base offense levels in the
Drug Quantity Table for drug offenses located in the 2D1.1(c) of the Guidelines.
U.S.S.G. Supplement to Appendix C, Amendment 782, Reason for Amendment 71
72.
But Mr. Washingtons Guideline range was based on the career-criminal
provision of U.S.S.G. 4B1.1, not the Drug Quantity Table at 2D1.1. As discussed,
the district court found that he qualified as a career criminal, and it calculated his
sentencing range and criminal history category under 4B1.1. Amendment 782 had
no impact on the sentencing range for career criminals under 4B1.1. Because
Amendment 782 does not have the effect of lowering [Mr. Washingtons] applicable
guideline range, his sentence cannot be modified under 3582(c)(2). U.S.S.G.
1B1.10(a)(2)(B).
In summary, Mr. Washingtons Guidelines range was calculated under the
career criminal provision of the Guidelines, which has not been reduced by
Amendment 782. The district court therefore could not grant a sentence reduction. Cf.
United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (holding that
Amendment 706 to the Guidelines, which reduced the drug-quantity offense levels
5

for crack cocaine, did not lower the defendants sentence where his Guidelines range
was calculated under the career-criminal provision).
III.

CONCLUSION

Because the district court lacked authority to reduce Mr. Washingtons

sentence under 18 U.S.C. 3582(c)(2), he has failed to raise any non-frivolous
arguments challenging that decision on appeal.
Counsels motion to withdraw is granted, and this appeal is dismissed.
Entered for the Court

Carolyn B. McHugh
Circuit Judge